SB 48 Public records: disclosure.

INTRODUCED BY Senators Sher and Speier

DECEMBER 7, 1998

An act to amend Sections 6255, 6258, and 6259 of, and to add
Section 6257 to, the Government Code, relating to public
records.

LEGISLATIVE COUNSEL'S DIGEST

SB 48, as introduced, Sher. Public records: disclosure.

The California Public Records Act provides that except for
exempt records, every state or local agency, upon request, shall
make records available to any person upon payment of fees to
cover costs. The act also requires each agency to determine
within 10 days from the receipt of a request for records,
whether the request, in whole or in part, seeks copies of
disclosable public records in the possession of the agency and
to promptly notify the person making the request of the
determination and the reasons therefor.

The act also authorizes any person to institute judicial
proceedings for injunctive or declarative relief or writ of
mandate to enforce his or her right to inspect or receive a copy
of any public record and requires that the court award court
costs and reasonable attorney fees to the plaintiff if he or she
prevails in the litigation.

This bill would require that the determination by a state or
local agency whether the public record is disclosable be in
writing and would provide that any person who is notified of a
denial of a request for public records may appeal to the
Attorney General pursuant to specified procedures within 15 days
of the date of denial. The bill would also require the
Attorney General to issue a written decision within 15 days of
the date that the written request and written response of the
agency is received by the Attorney General. By creating new
duties for local agency officials, the bill would impose a
state-mandated local program.

This bill also requires the Attorney General to impose a fine
on the agency of not less than $100 for each day that access to
the public record was delayed if the Attorney General finds
that the agency's decision to refuse disclosure was not
justified under the act. The bill would also require the court
to award the same $100 fine, as specified, and would authorize a
complaining party to seek his or her judicial remedy under the
act without first exhausting the administrative remedy provided
under this bill.

The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated
by the state. Statutory provisions establish procedures for
making that reimbursement, including the creation of a State
Mandates Claims Fund to pay the costs of mandates that do not
exceed $1,000,000 statewide and other procedures for claims
whose statewide costs exceed $1,000,000.

This bill would provide that, if the Commission on State
Mandates determines that the bill contains costs mandated by the
state, reimbursement for those costs shall be made pursuant to
these statutory provisions.

6255. The agency shall justify withholding any record by
demonstrating in writing that the record in question is
exempt under express provisions of this chapter or that on the
facts of the particular case the public interest served by not
making the record public clearly outweighs the public interest
served by disclosure of the record.

SEC. 2. Section 6257 is added to the Government Code, to
read:

6257. (a) Any person may appeal to the Attorney General a
state or local agency's denial of a request to inspect a public
record by forwarding to the Attorney General within 15 days of
the agency's denial a copy of his or her written request and a
copy of the written response denying the request by the agency.
The Attorney General shall review the request and denial and
issue a written decision within 15 days of the receipt of the
appeal stating whether the agency violated the provisions of
this chapter.

(b) In unusual circumstances, the Attorney General may extend
its 15-day time limit by sending written notice to the
complaining party and a copy to the denying state or local
agency, stating the reasons for the extension, and the day on
which a decision is expected to be issued, which shall not
exceed an additional 15 days. As used in this section, "unusual
circumstances" means any of the following, but only to the
extent reasonably necessary to the proper resolution of an
appeal:

(1) The need to obtain additional documentation from the
agency or a copy of the records involved.

(2) The need to conduct extensive research on issues of first
impression.

(3) An unmanageable increase in the number of appeals
received by the Attorney General.

(c) The burden of proof in sustaining the agency's action
shall rest with the agency. The Attorney General may request
additional documentation from the agency for substantiation.
The Attorney General may also request a copy of the records in
question but they shall not be disclosed.

(d) Upon completion of the review of an appeal pursuant to
subdivision (a), the Attorney General shall immediately mail a
copy of the findings of the review to the person that appealed
and to the state or local agency that denied access to the
record in question.

(e) If the Attorney General finds that the state or local
agency's decision to refuse disclosure is not justified under
Section 6254 or 6255, he or she shall order the agency to make
the record public and shall fine the agency not less than one
hundred dollars ($100) for each day access to the public record
was delayed, payable to the complainant.

(g) A party shall have 15 days from the date of the Attorney
General's decision to appeal that decision. An appeal within
the 15-day time limit shall be treated as if it were an action
brought under Section 6258.

(h) If an appeal is not filed in any court of competent
jurisdiction within 15 days from the day that the Attorney
General's decision is issued, the decision shall become final.

(i) If a person has reason to believe that the intent of this
chapter is being subverted by an agency short of denial of
inspection, including, but not limited to, the imposition of
excessive fees, the misdirection of the requester, or the
violation of the time limits prescribed in subdivision (c) of
Section 6253, the person may complain in writing to the Attorney
General and the complaint shall be subject to the same appeal
procedure set forth in this section for appealing the denial of
a request.

(j) Notwithstanding any other provision of law, the Attorney
General shall not be named as a party in any court action
regarding enforcement of this chapter and shall not have any
duty to defend his or her decision in any subsequent court
proceedings.

SEC. 3. Section 6258 of the Government Code is amended to
read:

6258. (a) Any person may institute proceedings for
injunctive or declarative relief or writ of mandate in any court
of competent jurisdiction to enforce his or her right to
inspect or to receive a copy of any public record or class of
public records under this chapter. The times for responsive
pleadings and for hearings in these proceedings shall be set by
the judge of the court with the object of securing a decision as
to these matters at the earliest possible time.

(b) A person shall not be required to exhaust the
administrative remedies available in Section 6257 prior to
filing an action pursuant to this section.

SEC. 4. Section 6259 of the Government Code is amended to
read:

6259. (a) Whenever it is made to appear by verified petition
to the superior court of the county where the records or some
part thereof are situated that certain public records are being
improperly withheld from a member of the public, the court shall
order the officer or person charged with withholding the
records to disclose the public record or show cause why he or
she should not do so. The court shall decide the case after
examining the record in camera, if permitted by subdivision (b)
of Section 915 of the Evidence Code, papers filed by the parties
and any oral argument and additional evidence as the court may
allow.

(b) If the court finds that the public official's decision to
refuse disclosure is not justified under Section 6254 or 6255,
he or she shall order the public official to make the record
public. If the judge determines that the public official was
justified in refusing to make the record public, he or she shall
return the item to the public official without disclosing its
content with an order supporting the decision refusing
disclosure.

(c) In an action filed on or after January 1, 1991, an An order of the court, either directing disclosure by a
public official or supporting the decision of the public
official refusing disclosure, is not a final judgment or order
within the meaning of Section 904.1 of the Code of Civil
Procedure from which an appeal may be taken, but shall be
immediately reviewable by petition to the appellate court for
the issuance of an extraordinary writ. Upon entry of any order
pursuant to this section, a party shall, in order to obtain
review of the order, file a petition within 20 days after
service upon him or her of a written notice of entry of the
order, or within such further time not exceeding an additional
20 days as the trial court may for good cause allow. If the
notice is served by mail, the period within which to file the
petition shall be increased by five days. A stay of an order or
judgment shall not be granted unless the petitioning party
demonstrates it will otherwise sustain irreparable damage and
probable success on the merits. Any person who fails to obey
the order of the court shall be cited to show cause why he or
she is not in contempt of court.

(d) The court shall award court costs and reasonable attorney
fees to the a plaintiff should the plaintiff
prevail who prevails in litigation filed pursuant to
this section. The court shall also award the plaintiff an
amount not less than one hundred dollars ($100) for each day
that the agency denied the right to copy or inspect the record
in question. The costs and fees shall be paid by the public
agency of which the public official is a member or employee and
shall not become a personal liability of the public official.
If the court finds that the plaintiff's case is clearly
frivolous, it shall award court costs and reasonable attorney
fees to the public agency.

SEC. 5. Notwithstanding Section 17610 of the Government Code,
if the Commission on State Mandates determines that this act
contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4
of Title 2 of the Government Code. If the statewide cost of
the claim for reimbursement does not exceed one million dollars
($1,000,000), reimbursement shall be made from the State
Mandates Claims Fund.

Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to
the California Constitution.